Company asks dismissal of Confederate flag case

Standing in front of the federal courthouse Thursday, Feb. 9, 2012, in Medford, Ore., Ken Webber shows off the Confederate battle flag emblazoned with the word "Redneck'' that got him fired as a school bus driver. The father of four young children, Webber hopes to get the job back with a lawsuit arguing his First Amendment rights were violated.

MEDFORD, Ore. — Ken Webber still proudly flies his Confederate battle flag with the word "Redneck" emblazed across it from the CB antenna on his pickup truck. He hopes that his lawsuit in federal court will get his job back driving a school bus.

"What Mr. Webber is encapsulating is a Jeffersonian agrarianism, where you stand up for your rights," attorney Thomas Boardman argued Thursday in U.S. District Court. "If we are going to say someone cannot identify as a redneck, what else can we not identify ourselves as?"

Attorneys for bus company First Student Inc. and the Phoenix-Talent School District countered that Webber himself said that the flag, a gift from his father, represented his "redneck" lifestyle, where family comes first, and people enjoy hunting, fishing and driving four-wheel-drive trucks through the mud. They said the flag did not represent any kind of political speech that would be protected by the First Amendment of the U.S. Constitution.

The arguments came on a motion filed by the bus company and the school district asking the judge to decide the case based on legal arguments without going to a trial before a jury. Magistrate Judge Mark Clarke took the matter under advisement. No trial date has been set.

Married and the father of four young children, Webber was fired last March after refusing bus company orders to take down the flag, cover it, or park some distance away from school property. Since losing his job, he has been taking classes at community college.

School Superintendent Ben Bergreen had seen the flag on a visit to the bus yard and demanded that the flag be removed from school property, citing a policy prohibiting symbols that could be offensive to minorities.

Caroline Guest, attorney for First Student, said that because the flag hung down while parked at the school bus yard, no one could see the word "Redneck," so the flag could not be considered any kind of political speech.

"He had it because he identifies as a 'redneck,'" she said. "He's proud of it, but he is not intending to tell the world."

Clarke said someone had to get the message.

"It's a 5-foot flag," he said.

Boardman argued that because the flag flew for 19 months without anyone complaining to the district, the issue was one of public concern, protected by the Constitution, and not a private concern, which is not protected.

Bergreen "launched a pre-emptive strike on the First Amendment," Boardman said. "There was no clear danger. There wasn't even a present danger.

"If Mr. Bergreen had stepped 6 feet to the right that day, (so he didn't see the flag), we wouldn't be here today," Boardman said.

Morgan Smith, attorney for the school district, said Bergreen was not directly responsible for Webber's firing and merely informed the bus company that the flag violated district policy.

"It was really more of a demand, wasn't it?" asked the judge. "Get that thing down?"

"No, your honor," answered Smith.

"So the district would have been fine if the flag never came down?" the judge asked.

"It's unclear," Smith said. "I don't think there is not a sufficient nexis between what the school district has done, and what First Student has done," to qualify the firing as an action by the district.

Boardman argued that the firing took place on school property, and an email Bergreen sent to the bus company's local manager showed he intended to intimate her and was angry the firing had gotten into the news.